HKSAR v. Butt Muhammad Gulzar

DCCC 74/2019

[2019] HKDC 883

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 74 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to four charges of trafficking in dangerous drugs. Charges 1 to 4 involve respectively 6.39 gramme of cannabis in herbal form, 0.65 gramme of powder containing 0.39 gramme of cocaine, 0.68 gramme of powder containing 0.44 gramme of cocaine and 1.75 gramme of powder containing 1.32 gramme of cocaine.

2.Full particulars of the offences are set out in the facts admitted by the defendant today. 

3.In summary, on four different dates and occasions between 7 September 2018 and 3 October 2018, two policer officers (PW1 and PW2) acted as agents in the sting operations.  On 31 August 2018, in Tsim Sha Tsui near Chungking Mansions, PW1 walked past there.  The defendant asked PW1 if he wanted any drugs and the defendant gave his phone number to PW1.  On 7 September 2018, PW1 texted the defendant for cannabis and finally at 5:31 pm on the same day, at Sheraton Hotel, Tsim Sha Tsui, the defendant sold 6.39 gramme of cannabis to PW1 for $1,000 (Charge 1). 

4.On 30 September 2018, PW1 texted the same number for cocaine.  At 5:14 pm the same day, at Sheraton Hotel, Tsim Sha Tsui, the defendant sold 0.65 gramme of powder containing 0.39 gramme of cocaine to PW1 for $1,200 (Charge 2).

5.On 2 October 2018, when PW2 walked past Chungking Mansions in Tsim Sha Tsui, the defendant asked PW2 if he was interested in buying cocaine.  Near No 3 Carnarvon Road, Tsim Sha Tsui, the defendant finally sold 0.68 gramme of powder containing 0.44 gramme of cocaine to PW2 at $1,200 (Charge 3).

6.On 3 October 2018, PW1 texted the same number for cocaine.  At 4:30 pm the same day, at Sheraton Hotel, Tsim Sha Tsui, the defendant sold 1.75 gramme of powder containing 1.32 gramme of cocaine to PW1 for $3,000 (Charge 4).

7.Shortly afterwards, the operation turned overt.  Under caution, the defendant admitted he obtained the drugs involved in the 4 transactions from his friend.  The estimated street values of the drugs involved in the 4 transactions were $1,840, $934, $977 and $2,516 respectively.  The defendant was a “recognizance paper holder” at the material times.  The defendant unlawfully trafficked in the dangerous drugs as mentioned before.

MITIGATION

8.In passing sentence, I have carefully considered the written and oral submissions of Mr Murray, including the legal authorities which suggest the band of sentence of around 2 years involving selling of drugs to undercover police offices.  He also mentioned the question of totality.  I take into account the defendant’s clear record and his early guilty plea.  

GUIDELINES

9.In HKSAR v Lau Tak Ming and Abdallah Anwar Abbas[1] the Court of Appeal set out the sentencing guidelines for trafficking in heroin and cocaine.  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.

10.In Attorney General v Chan Chi Man[2]the starting point after trial for trafficking in cannabis resin of under 2000 gramme is up to 16 months’ imprisonment.  The potency of herbal cannabis is 4 times less, and the potency of cannabis oil is 4 times greater than cannabis resin.  Tariffs must be adjusted accordingly for herbal cannabis or cannabis resin: Attorney General v Tuen Shui Ming and Anor[3].  Hence, the tariff for under 2000 gramme of herbal cannabis may be up to 4 months’ imprisonment: HKSAR v Chor Lui[4]. 

11.The total narcotic content here is 6.39 gramme of cannabis in herbal form and 2.15 gramme of cocaine.  I must not ignore the fact that this case involved 4 separate occasions, not ‘cocktail of drugs’ in a single charge.

STARTING POINT

Charge 1

12.In respect of charge 1, by way of proportional calculation, I adopt the starting point of 3 months for selling 6.39 gramme of herbal cannabis.  I enhance the starting point for 2 months for the fact that the defendant is a “form 8 recognisance holder”: HKSAR v Joof Saihou[5]. After giving one third discount for his early guilty plea, the sentence for Charge 1 should be 3 months and 10 days.  

Charge 2

13.In respect of charge 2, I adopt the starting point of 24 months for selling 0.39 gramme of cocaine.  I enhance the starting point for 3 months for the fact that he is a “form 8 recognisance holder” and he committed the second offence within a short period of time (within a month).  After giving one third discount for his early guilty plea, the sentence for Charge 2 should be 18 months.

Charge 3

14.In respect of charge 3, I adopt the starting point of 24 months for selling 0.44 gramme of cocaine.  I enhance the starting point for 3 months for the fact that he is a “form 8 recognisance holder” and he committed the 3^rd offence within a short period of time (within a month).  After giving one third discount for his early guilty plea, the sentence for Charge 3 should be 18 months.    

Charge 4

15.In respect of charge 4, I adopt the starting point of 24 months for selling 1.32 gramme of cocaine.  I enhance the starting point for 3 months for the fact that he is a “form 8 recognisance holder” and he committed the 4^th offence within a short period of time (within a month).  After giving one third discount for his early guilty plea, the sentence for Charge 4 should be 18 months.    

TOTALITY

16.Had I ordered all sentences to run consecutively, that would have attracted a total of 57 months and 10 days’ imprisonment, which seems to be excessive.  Had I treated the total narcotic content involved in this case as if it is a single charge, that would have attracted a total of about 36 months’ imprisonment, but that would akin to ignore the fact of separate charges and repeated offence within a short period of time.  The overall criminality with involvement of undercover police officers and repeated offence in this case should arrive at 44 months’ imprisonment.  As such, the defendant is convicted and sentenced as follows:-

Charge 1 – 3 months and 10 days’ imprisonment, concurrent with Charge 2;

Charge 2 – 18 months’ imprisonment, consecutive to Charge 3;

Charge 3 – 18 months’ imprisonment; and

Charge 4 – 18 months’ imprisonment, with 6 months concurrent to Charge 3 (or 12 months consecutive to Charge 3).

The total sentence to be served by the defendant is 48 months or 4 years imprisonment.